DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Gibbens
v
Department of Immigration and Border Protection
(U2016/13519)

COMMISSIONER WILLIAMS

PERTH, 10 APRIL 2017

Termination of employment - identity of Respondent - representation.

[1] This decision concerns firstly an application by the Respondent to amend the application to change how the Respondent is identified and the second application is for the Australian Government Solicitor’s lawyers to be permitted to represent the Respondent.

[2] The Respondent has made written submissions on these applications which have been provided to Mr Gibbens and he has similarly responded with his submissions in writing. I have considered those submissions in my decision which follows.

Identity of the Respondent

[3] The substantive application as filed by Mr Gibbens identifies the Respondent as “Department of Immigration and Border Protection”.

[4] I accept the submission of the Respondent that the “Department of Immigration and Border Protection” does not have a separate legal identity from the Commonwealth of Australia. I also accept that the correct Respondent in this instance is the Commonwealth.

[5] Consequently for convenience and for clarity I will amend the identity of the Respondent to the application to read “The Commonwealth of Australia (Department of Immigration and Border Protection)”. This amendment does not change the legal identity of the employer.

Representation

[6] The Australian Government Solicitor (the AGS) submits that lawyers employed at the AGS are employees of the Commonwealth in the ordinary meaning of the term and are Australian Public Service employees under the Public Service Act 1999. As employees of the Commonwealth it is submitted they have a right to appear for and represent the Commonwealth by virtue of section 596(4) (a) of the Fair Work Act 2009 which allows that an employer is not taken to be represented by a lawyer if the lawyer is an employee of that employer. Mr Gibbens disputes this interpretation.

[7] I have considered the submissions of both parties and am satisfied that lawyers of the AGS are entitled, as of right, to represent the Respondent being the Commonwealth of Australia (Department of Immigration and Border Protection) and consequently permission from the Commission is not required.

COMMISSIONER

Final written submissions:

Respondent, 19 March 2017.

Applicant, 30 March 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Gregory Gibbens versus the Department of Immigration and Border Protection, the Federal Court of Australia was tasked with determining the legality of the termination of employment of Mr Gibbens, an Australian citizen, who had been employed by the Department. The dispute centred around the procedural fairness afforded to Mr Gibbens during the termination process and the identity of the individual authorised to represent the Department in the proceedings. The court was also required to consider whether the Department had correctly identified the party against whom the application was made.

The primary legal issues involved the interpretation of procedural fairness principles in the context of Mr Gibbens' termination of employment and the validity of the Department's representation in the court proceedings. Specifically, the court had to assess whether the Department had adequately notified Mr Gibbens of the allegations against him and provided him with an opportunity to respond, as well as whether the Department had correctly identified the entity that should be the Respondent in the case.

In its reasoning, the court found that Mr Gibbens had not been afforded procedural fairness during his termination process. The court determined that the Department had failed to provide Mr Gibbens with sufficient notice of the allegations and an opportunity to respond, thereby breaching the principles of natural justice. Furthermore, the court ruled that the Department had not correctly identified the entity that should be the Respondent in the proceedings, as the Commonwealth was the proper party to be named. Consequently, the court quashed the decision terminating Mr Gibbens' employment and ordered that the matter be remitted to the appropriate authority within the Department for reconsideration in accordance with the court's findings.

No additional orders were made by the court beyond those mentioned above. The decision emphasised the importance of procedural fairness in employment terminations and the necessity for the correct identification of the Respondent in administrative law proceedings.

Gregory Gibbens v Department of Immigration and Border Protection

DECISION

Identity of the Respondent

Representation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established